Archive for Friday, February 11, 2005

Tensions run high during Wal-Mart hearing

Attorney, city official behave ‘rudely’ at court

February 11, 2005

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In a courtroom where emotions briefly boiled over, Wal-Mart attorneys Thursday argued city commissioners ignored expert opinions from their own staff when thwarting the retailer's plans to build a store in northwest Lawrence.

Douglas County District Court Judge Michael Malone heard arguments but made no ruling in a case seeking to overturn a 2003 city decision that stopped Wal-Mart from receiving a building permit for a new store on the northwest corner of Sixth Street and Wakarusa Drive.

In a sign of how heated the lawsuit has become, two attorneys briefly became involved in a physical confrontation while court was out of session. Todd Thompson, a Lawrence attorney for Wal-Mart, became upset during open court about an allegation by Scott Beeler, an Overland Park attorney representing the city, that Wal-Mart had been less than forthright in dealing with City Hall.

During a recess in court, Thompson was explaining his point to a Journal-World reporter, when David Corliss, assistant city manager and director of legal services, inserted himself into the conversation by stepping between Thompson and the reporter. After Corliss remained between the two individuals, Thompson laid hands on Corliss and shoved him aside. Voices briefly were raised between Thompson and Corliss before the two men returned to their seats. About 20 minutes later, after court recessed again, both men apologized and said each had acted "rudely."

Actual oral arguments also were tense. Wal-Mart attorney Timothy Sear argued that the city had improperly superseded the authority of Planning Director Linda Finger and Neighborhood Resources Director Victor Torres.

Sear read from a deposition by Finger that indicated Finger originally believed that Wal-Mart should be classified as a "variety store," thus meeting the city's zoning requirements for the site. In court, city attorneys have argued that Wal-Mart is a "department store" and so does not meet the zoning requirements.

Sear also read from a deposition by Torres, whose department is responsible for issuing building permits. That deposition indicated Torres did not initially deny the building permit because he thought Wal-Mart was a department store. Instead, the deposition indicates he denied it because he believed the proposed building was too large for the site. That has since been disproved.

Sear said city officials denied the permit for political reasons, not practical ones.









"The City Commission decided it just didn't want a Wal-Mart," Sear said. "Wal-Mart saw that there was a game being played here. It is time for the gamesmanship to end."

Sear also argued that Finger and Torres should have been compelled to testify before the city's Board of Zoning Appeals, which upheld the decision to deny the issuance of the building permit.

Beeler, arguing on behalf of the city, said Wal-Mart's assertions were off base. He said whatever opinions Finger or Torres once had about the project were "red herrings" in the case. He said the key issue was that Wal-Mart officials had the opportunity to convince board of zoning appeals members that they were a variety store rather than a department store.

Beeler, though, noted that Wal-Mart was unsuccessful, in part, because the company in its own annual report referred to itself as a department store company.

"They never presented any evidence that they were anything other than a department store," Beeler said. "The evidence is that Wal-Mart is and has been the world's largest department store."

Malone gave no indication when he will issue a ruling in the case. The case is one of three still pending regarding the Sixth Street and Wakarusa Drive site. Malone heard arguments in October regarding a similar city decision to deny a building permit for a restaurant that would be adjacent to the Wal-Mart site. A case that challenges a city-initiated rezoning of the site also is pending. That case essentially will become moot if the city loses the other two cases that are pending.

According to City Manager Mike Wildgen, the city thus far has spent $233,901 defending itself against the lawsuits.

None of the lawsuits affects plans that Wal-Mart has to expand the existing Wal-Mart at 3300 Iowa into a Supercenter store that sells groceries. Wal-Mart officials have said they'll need a second store in the city even after the current store is expanded.

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